High Court
Case Details
WP(C) 6362/2006 BEFORE THE HONBLE JUSTICE MR L.S. JAMIR Heard Mr. P. Upadhyay, learned counsel appearing for the petitioner as well as M r.N.Upadhayay, learned State counsel appearing for the respondents.
Legal Reasoning
2] Mr. P. Upadhyay, learned counsel for the petitioner submits that the pet itioner after applying for appointment as a muster roll employee was allowed to join as a muster roll worker under the establishment of District Animal Husbandr y and Veterinary office, Kamrup on 01.12.1989. Thereafter, she performed her dut ies to the satisfaction of her superior officers and continued as a muster roll worker without any break in service. Sometime in the third week of January, 2005 the petitioner took ill and could not attend to her duties. Accordingly, she fi led leave application on 18.01.2005 before the respondent No.3 with a request to allow her leave w.e.f. 18.01.2005 for one (1) month. She enclosed her medical c ertificate along with the leave application. As the petitioner did not recover f rom her illness, within the said period of one (1) month, and as advised by her doctor she again applied for leave on 18.02.2005 including medical certificate f or another period of one month. After further treatment, she recovered from her illness and she went to join her duties on 25.11.2005. However, the petitioner w as not allowed to join her work on the ground that all muster roll workers were already regularized pursuant to a Government order. On being advised, the petiti oner submitted an application dated 25.11.2005 to the respondent No.3 ex plaining her reasons for being absent from work since 18.01.2005 and also reques ted for regularization of her service. The petitioner also enclosed medical cert ificates in connection with her illness along with the said representation. On r eceiving no response from the respondent No.3, the petitioner made another repre sentation dated 22.02.2006 enclosing all medical testimonials in her support to the respondent No.1 stating, inter alia, that she was on maternity leave since 1 8.02.2005 as advised by her doctor. The petitioner also stated that the Governme nt has regularized the services of the State muster roll workers and her name ha s also been approved by the Government and sent for appointment and therefore, s he requested the respondent No.1 to look into the matter and regularize her serv ice as per the decision of the Government. On receipt of the said representation dated 22.02.2006, the respondent No.2 by a communication dated 23rd February, 2005 addressed to the respondent No.3 reques ted him to examine the matter and take immediate action for regularization of th e services of the petitioner whose name appeared at SL.No.149 in the list forwar ded by the Finance (CE-II) Department. On receipt of the letter dated 23.02.2005 , the respondent No.3 by an order dated 6th April, 2006 disposed of the represen tation dated 22.02.2006 made by the petitioner. By the said order dated 6th Apri l, 2006 the respondent No.3 rejected the representation made by the petitioner o n the ground that no wages was drawn since 18.01.2005 as the petitioner was unau thorisedly absent from Government duties till date. He also stated that since 18 .01.2005 no communication, whatsoever, was received from the petitioner regardin g her whereabout till 25.11.2005. It was also mentioned that as per the letter d ated 22.08.2005 only those muster roll workers are entitled for regularization p rovided such workers were engaged prior to 01.04.1993 and also in continuous ser vice without interruption/break. As the petitioner was unauthorisedly absent fro m her service w.e.f. 18.01.2005 till date and her service discontinued w.e.f. 18 .01.2005 it appears that her case for regularization is not within the Governmen t policy as per the Government letter dated 22.08.2005. 3] The learned counsel for the petitioner submits that the order dated 06.0 4.2006 was passed without giving an opportunity of being heard to the petitioner nor were medical certificates as well as the leave applications considered by t he respondent No.3 while passing the said impugned order. He, further, submits t hat the petitioner had joined her service on 01.12.1989 and was continued till 1 7.01.2005 and thereafter, she took leave due to her illness. The list of muster roll workers of the Animal Husbandry and Veterinary Department contains name of the petitioner at SL.No. 149 which was prepared by the respondent No.3 and appro ved by the State Government and merely because the petitioner had taken leave, s he could not have been deprived of the benefit of regularization by the responde nt No.3. He also submits that some muster roll employees who were also absent fr om service for more than one (1) year were regularized by the respondent No.3. H owever, the petitioner has been discriminated and therefore, submits that this i s a fit case for interference by this Court and directs the respondents to regul arize the service of the petitioner as has been done for the other muster roll e mployees. 4] Mr.N.Upadhayay, learned counsel appearing for the State submits that as the petitioner was on unauthorized leave w.e.f. 18.01.2005 to 24.11.2005, the pe titioner cannot be treated at par with the other muster roll employees and there fore, the writ petition should be dismissed. He also submits that in the absence of any counter affidavit and instruction he has nothing more to submit. 5]
Decision
The present writ petition was instituted in the year 2006. Since then no counter affidavit has been filed by the State respondents till date. In the abs ence of counter affidavit, controverting the writ petition, it is implied that t he State respondents has nothing to say and that the averments made in the writ petition are admitted. On perusal of the materials, available on record, it is seen that the pe 6] titioner had made applications for leave dated 18.01.2005 and 18.02.2005 submitt ing medical certificates for grant of leave. This Court finds that if no orders were passed basing on the said applications it is not the fault of the petitione r but the inaction of the respondents to take appropriate steps whether to grant or not to grant leave. The inaction of the respondents cannot be used as a weap on to prejudice the service prospect of the petitioner. When the petitioner trie d to join work on 25.11.2005 she was not allowed to do so without citing any rea sons and instead the petitioner was made to make representations. On such repres entations, being made, the respondent No.3 had taken no steps to dispose of thos e representations. It was only after the intervention of the respondent No.1 thr ough the respondent No.2 that the respondent No.3 had disposed of the representa tion dated 22.02.2006 by his order dated 6th April, 2006. While perusing the let ter dated 23.02.2005 written by the respondent No.2 it is seen that the responde nt No.3 was requested to examine the matter and take immediate action for regula rization of the service of the petitioner whose name appeared at SL.No. 149 in t he list forwarded by the Finance Department. For proper ajducation of the matter the letter dated 23.02.2005 is quoted herein below: (cid:28)GOVERNMENT OF ASSAM A.H. & VETERINARY DEPARTMENT ********** No. VFV.152/2001/188, the 23rd Feb./05 : From Dated Dispur, Shri R.K. Sarma, ACS, Deputy Secretary to the Govt. of Assam, A.H. Veterinary Department, Dispur, Guwahati-6. The Director, A.H. & : Veterinary, Assam, Chenikuthi, Guwahati-3. Regularisation of Services : of Smti Archana Baruah, M.R. Worker. To Sub Sir, I am directed to refer to the subject cited above and to forward herewith a prayer petition received from Smti Archana Baruah an M.R. Worker und er your establishment. You are requested to examine the matter and take immediate actio n for regularization of the services of Smti. Archana Baruah, whose name appeare d at Serial No. 149 in the list forwarded by the Finance (CE-II) Deptt. An early action in this regard is solicited. Yours faithfully, Sd/- Illegible 23.02.2006 Deputy Secretary to the Govt. of Assam, A.H. & Veterinary Department. 23.02.2006 (cid:29) 7] By the letter dated 22.08.2005 written by the Commissioner and Secretary to the Government of Assam, Finance Department and addressed to the Commissione r and Secretary/Secretary to the Government of Assam of various departments incl uding the department of A.H. & Veterinary (annexed as Annexure-H to the writ pet ition), it is seen that a policy decision was taken by the Government to regular ize the services of work charged/muster roll workers of different State Governme nt’s departments who were engaged prior to 01.04.1993 and are in continuous serv ice without interruption/break irrespective of their length of services. Further , in the list of M.R. Workers under the District Animal Husbandry and Veterinary officer, Kamrup, approved by the Department, the name of the petitioner appears at serial No. 149. The same is counter signed by the Under Secretary to the Gov ernment of Assam, Finance Department as well as the respondent No. 3 on 20.08.20 05 and 11.02.2005 respectively. Therein the date of engagement of the petitioner is shown as 01.12.1989 and therefore, this Court observes that she was well wit hin the cut of date of 01.04.1993. 8] The respondent No.3 while disposing of the representation dated 22.02.20 06 prima facie had not heard the petitioner nor an opportunity was given to expl ain her reasons for being away from work from 18.01.2005 to 24.11.2005. If no de cision was taken for granting leave to the petitioner, the same was not the faul t of the petitioner but inaction of the respondents and therefore, the period of absence from 18.01.2005 to 24.11.2005 cannot be treated as break in service by the respondents. It is also seen that the respondent No.3 has completely ignored the directions contained in the letter dated 23.02.2005. The reasons for reject ing the representation dated 22.02.2006 by the order dated 6th April, 2006 there fore, cannot be sustained. In the facts and circumstances of the case and in the absence of any oth 9] er materials controverting the documents annexed to the writ petition, this Cour t has no hesitation to set aside the order dated 06.04.2006 by which the represe ntation of the petitioner was rejected. Accordingly, the order dated 06.04.2006 is set aside and quashed. 10] The respondents, more particularly the respondent No.3, is directed to c onsider for grant of leave to the petitioner w.e.f. 18.01.2005 to 24.11.2005 wit hin a period of one (1) month from the date of receipt of a copy of this order a nd thereafter take steps for regularization of her service in terms of the Gover nment of Assam, Finance (EC-II) Department letter dated 22.08.2005 and such exer cise shall be completed within a period of three (3) months. This writ petition is accordingly allowed. No cost.